Return of the case for additional investigation and new forms of reinstatement of pre-trial investigation under the court decision in the criminal procedure of Ukraine
Journal Title: Правова позиція - Year 2018, Vol 1, Issue
Abstract
The institute of returning the case for further investigation have been seen by the legislator as a procedural mechanism for eliminating inaccuracies and incomplete pre-trial investigation both in the Soviet criminal procedure and the criminal procedure of the independent Ukraine (CPC 1927 and CPC 1960) same, and up to the adoption of a new Code of Ukraine 2012. The main reason for the abolition of this institution is the widespread practice of the courts, that in the case for lack of evidence of guilt, instead of the acquittal the accused, returned the case for an additional investigation, which resulted in an increase in the length of the criminal proceedings, the closure of a criminal case on the same rehabilitation bases, for which the court had to adopt an acquittal. The abolition of return cases for additional investigation does not reduce the significance of the pre-trial investigation as a mandatory stage of criminal proceedings. It is noted that is inadmissible to prohibit a court from substantiating a judicial decision with testimony given to an investigator, prosecutor or referring to them (Section 4 Article 95 CPC). The ECHR in its decisions warns against refusal to admit evidence in court only because they were received during the pre-trial investigation. The analysis of the norms of the CPC of Ukraine 2012, allows a number of other forms of reinstatement by the court of pre-trial investigation, some of which were known in the CPC 1960, but suffered significant semantic changes, while others were not known to the CPC 1960, since they were based on new foundations and institutions , which were first foreseen by the CPC 2012. There are: 1) return to the prosecutor the indictment, a request for release from criminal liability, the application of compulsory measures of medical or educational nature (Clause 3, Section 3 of Article 314 CPC); 2) court order granting pre-trial investigation to conduct certain investigative (detective) actions, but only as an exception and only if certain conditions exist (Article 333 CPC); 3) performance prosecutor of the court to postpone the trial to Articles 276–279, 290–293 CPC in case of nominating an additional charge (Section 2 of Article 339 CPC); 4) restoration of pre-trial investigation by the decision of the investigating judge, in which he cancels the decision of the investigator, the prosecutor of stopping or closing a criminal proceeding (Calusa1, Section 2, Article 307 CPC); 5) the court refusal to approve agreements on recognition of guilt or reconciliation or the abolition of the court sentence, which approved the agreement, in case of failure to execute the agreement and returning the criminal proceedings to complete the pre-trial investigation in a general manner (Clause 1, Section 3, Article 314, Section 7 Article 374, Section 3 Article 476 CPC); 6) the restoration of the decision of the court of pre-trial investigation in a criminal proceeding related to the release of a person from criminal liability (Section 4 Article 288 CPC). The last four forms are for the first time in the CPC 2012. Updated and new forms of reinstatement of pre-trial investigation should contribute for the providing a quick, complete and impartial pre-trial investigation and trial, performing the tasks of criminal proceedings (Article 2 CPC), taking into account the international human rights and justice standards.
Authors and Affiliations
В. П. Шибіко
Keywords
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